Not much to like in this ruling

Monday

Mar 4, 2013 at 6:00 AM

Clive McFarlane

The city might be losing its case against former Patrolman David Rawlston on legal grounds, but not on its moral obligation to wage this fight.

The city fired former patrolman David Rawlston in 2007 for conduct unbecoming a police officer. A union-friendly arbitrator overruled the dismissal and called for the officer’s reinstatement. The city appealed the case in Superior Court and lost. On Friday, the Appeals Court also ruled against the city.

I doubt the city will ever prevail, since the courts are only adjudicating the case on a narrow legal point, and that is whether the arbitrator’s factual finding is in conflict with his reinstatement ruling, a point made by Tim Norris, the city’s lawyer.

“This result was not unexpected, because of the way the courts almost automatically uphold arbitration awards, without consideration of the impact of the decision on the public,” he said.

In 2007, Mr. Rawlston, then on injured-on-duty status, confronted three boys up the street from his house and forced them at gunpoint to kneel and then lie facedown in the street. He searched the boys, ages 14 and 15, then allegedly hit at least two of them in the head with the gun barrel.

Did Mr. Rawlston engage in serious misconduct toward the teenagers, and then interfere with the ensuing investigation by making untruthful statements?

The city says he did, noting among other transgressions, that the former officer had introduced deadly force in a rather benign matter.

The arbitrator, however, said Mr. Rawlston’s actions were reasonable under the circumstances. The Superior Court said it lacks the authority to second-guess the arbitrator, and the Appeals Court affirmed the lower court’s ruling.

Citing case law, the Appeals Court argued that “the question to be answered is not whether (the officer’s conduct) itself violates public policy, but whether the agreement to reinstate him does so.”

The Appeals Court panel noted that case law makes clear that it’s “strictly bound by an arbitrator’s findings and legal conclusions, even if they appear erroneous, inconsistent or unsupported by the record at the arbitration hearing.”

Errors of law or fact, according to the court, are not sufficient grounds to set aside an arbitrator’s award.

“An arbitrator’s result may be wrong; it may appear unsupported; it may appear poorly reasoned; it may appear foolish. Yet it may not be subject to the court interference,” the courts have ruled in the past.

So, in essence we are left with an arbitrator deciding proper conduct for a Worcester police officer.

How comforting is that?

Imagine being a teenager confronted by a loud and aggressive civilian with a loaded gun, which essentially is what happened in this case. Mr. Rawlston had not caught the kids engaged in any criminal activity, and they were not on his property, when he confronted them.

“He was yelling the whole time,” a neighbor told police in describing Mr. Rawlston’s demeanor and actions that night. “I mean the whole time. He was using this loud, loud, loud voice. And he said, ‘What were you doing in my yard?’ and they said something, and he said, ‘Don’t tell me that. My neighbors told me you were in my yard.’ ”

Mr. Rawlston admitted he did not state that he was a police officer prior to pointing his firearm at the boys. He admitted to striking at least one of the boys with the barrel of his gun. The boys testified he struck all three of them, and threatened to kill and beat them.

He admitted to holding the boys at gunpoint and subjecting them to a search, and he did all of this without cause. Is this the type of policing we want for Worcester?

City officials are saying no, but an arbitrator who is only advocating for a small and select constituency has trumped their voices.